Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased today to introduce the ``Citizens Access to Justice Act of 1999,'' or CAJA. More precisely, I am reintroducing the same bill that was voted out of the Judiciary Committee last Congress, but was a victim of a filibuster by the left. Why am I doing this? Some may say that it is fruitless. But even though Senator Landrieu, other supporters of the bill, and myself, were unsuccessful last Congress in passing this much needed bill, property owners of Utah, and, indeed, of all of our States, still feel the heavy hand of the government erode their right to hold and enjoy private property. To make matters worse, many of these property owners often are unable to safeguard their rights because they effectively are denied access to federal courts. Our bill was designed to rectify this problem. Let me explain. In a society based upon the ``rule of law,'' the ability to protect property and other rights is of paramount importance. Indeed, it was Chief Justice John Marshall, who in the seminal 1803 case of Marbury v. Madison, observed that the ``government of the United States has been emphatically termed a government of laws, and not of men. It will cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right.'' Despite this core belief of John Marshall and other Founders, the ability of property owners to vindicate their rights in court today is being frustrated by localities which sometimes create labyrinths of administrative hurdles that property owners must jump through before being able to bring a claim in Federal court to vindicate their federal constitutional rights. They are also hampered by the overlapping and confusing jurisdiction of the Court of Federal Claims and the federal district courts over Fifth Amendment property rights claims. CAJA seeks to remedy these situations. The purpose of the bill is, therefore, at its root, primarily one of fostering fundamental fairness and simple justice for the many millions of Americans who possess or own property. Many citizens who attempt to protect their property rights guaranteed by the Fifth Amendment of the Constitution are barred from the doors of the federal courthouse. In situations where other than Fifth Amendment property rights are sought to be enforced--such as First Amendment rights, for example-- aggrieved parties generally file in a single federal forum to obtain the full range of remedies available to litigants to make them whole. In property rights cases, property owners may have to file in different courts for different types of remedies. This is expensive and wasteful. Moreover, unlike situations where other constitutional rights are sought to be enforced, property owners seeking to enforce their Fifth Amendment rights must first exhaust all state remedies with the result that they may have to wait for over a decade before their rights are allowed to be vindicated in federal court--if they get there at all. CAJA addresses this problem of providing property owners fair access to federal courts to vindicate their federal constitutional rights. Let me be more specific. The bill has two main provisions to accomplish this end. The first is to provide private property owners claiming a violation of the Fifth Amendment's Taking Clause some certainty as to when they may file the claim in federal court. This is accomplished by addressing the procedural hurdles of the ripeness and abstention doctrines which currently prevent them from having fair and equal access to federal court. The bill defines when a final agency decision has occurred for purposes of meeting the ripeness requirement and prohibits a federal judge from abstaining from or relinquishing jurisdiction when the case does not allege any violation of a state law, right, or privilege. Thus, the bill serves as a vehicle for overcoming federal judicial reluctance to review takings claims based on the ripeness and abstention doctrines. The second provision clarifies the jurisdiction between the Court of Federal Claims in Washington, D.C., and the regional federal district courts over federal Fifth Amendment takings claims. The ``Tucker Act,'' which waives the sovereign immunity of the United States by granting the Court of Federal Claims jurisdiction to entertain monetary claims against the United States, actually complicates the ability of a property owner to vindicate the right to just compensation for a government action that has caused a taking. The law currently forces a property owner to elect between equitable relief in the federal district court and monetary relief in the Court of Federal Claims. Further difficulty arises when the law is used by the government to urge dismissal in the district court on the ground that the plaintiff should seek just compensation in the Court of Federal Claims, and is used to urge dismissal in the Court of Federal Claims on the ground that plaintiff should first seek equitable relief in the district court. This division between law and equity is archaic and results in burdensome delays as property owners who seek both types of relief are ``shuffled'' from one court to the other to determine which court is the proper forum for review. The bill resolves this matter by simply giving both courts concurrent jurisdiction over takings claims, thus allowing both legal and equitable relief to be granted in a single forum. I must emphasize that the bill does not create any substantive rights. The definition of property, as well as what constitutes a taking under the Just Compensation Clause of the Fifth Amendment, is left to the courts to define. The bill would not change existing case law's ad hoc, case-by-case definition of regulatory takings. Instead, it would provide a procedural fix to the litigation muddle that delays and increases the cost of litigating a Fifth Amendment taking case. All the bill does is to provide for fair procedures to allow property owners the means to safeguard their rights by having their day in court. Mr. President, I am very well aware that this bill has been opposed by the Department of Justice, many localities, some interstate governmental associations, and certain environmental groups. I believe that there concerns that the bill would hinder local prerogatives and significantly increase the amount of federal litigation are highly overstated. The bill is carefully drafted to ensure that aggrieved property owners must first seek solutions on the local or state level before filing a federal claim. It just sets a limit on how many procedures localities may interpose. Moreover, I seriously doubt that there will be a rush of new litigation, as some have contended, flooding federal courts. That there will be no significant increase was the conclusion of the nonpartisan Congressional Budget Office in its study of last year's bill. It is extremely difficult to prove a takings claim, and this bill does not in any way redefine what constitutes a taking. These claims are also expensive to bring. Paradoxically, localities' need to defend federal actions may be lessened by the bill because localities already must litigate property rights claims on federal ripeness grounds, which take years to resolve. Let me restate this. By providing certainty on the ripeness issue, the bill may very well reduce litigation costs to localities. Substantive takings claims, unless they are likely to prevail on the merits, are simply too hard to prove and too expensive to bring in federal court. And the issue of ripeness will have been removed by the bill from the already crowded court dockets. Mr. President, it is interesting to note that once many state officials, localities, and state and trade organizations really examine the measure, many become the bill's supporters. Those supporting the bill and increased vigilance in the property rights arena include the Governors of Tennessee, Wisconsin, New Mexico, and North Dakota. They also include the American Legislative Exchange Council, which represents over 3000 state legislators, and trade groups such as America's Community Bankers, the National Mortgage Association of America, the National Association of Home Builders, the National Association of Realtors, and the National Federation of Independent Businesses, the organ of small business in the United States. They also include agricultural interests such as the American Farm Bureau, the American Forest and Paper Association, the National Cattlemen's Beef Association, and the National Grange. Just as important, let me point out that 133 House sponsors of the last year's House passed bill were former state and local officeholders. I do not believe that they would have voted for the bill if the bill would conflict with local sovereignty. Mr. President, we have bent over backwards trying to accommodate those expressing concerns about the bill which passed out of the Senate Judiciary Committee last year. We met with city mayors, representatives of local governmental organizations, attorneys generals, and religious groups, to name just a few. We held group meetings and asked for suggestions and changes to the bill which would alleviate opposition and concerns. These changes are incorporated in the present bill. These changes by and large alleviate municipalities' concerns that the bill would become a vehicle for frivolous and novel suits. They remove any incentive the bill may have for property owners to file specious suits against localities. They foster negotiations to resolve problems. And, they recognize the right of the states and localities to abate nuisances without having to pay compensation. But I am under no illusion. I understand that many localities still oppose the bill. The process that we so fruitfully began last year should be continued. It is my hope that groups supporting property rights and those localities and governmental entities that oppose the bill should meet as soon as practicable. Let each side discuss their problems and concerns. I believe--in the best tradition of American pragmatic know how--that a solution to this problem can be worked out. The bill I introduce today is a model. But it is a model that can be improved. I assure all those concerned that we will consider all reasonable suggested changes to the bill. After all, it is not pride of authorship that is important. What is important, instead, is a viable solution to a vexing and unfair problem. Mr. President, I ask unanimous consent that the entire text of the bill be inserted in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, let me say a few words also about Meg Greenfield. This was an extraordinary journalist, an extraordinary person, a person who anybody would have to look up to. I remember as a young conservative meeting with her. She was fair and decent to me. It just about meant everything to me that she would take time to discuss some of the great issues of the day with me. I have inestimable respect for her. My sympathy and the sympathy of my wife Elaine goes out to her family. They have real reason to be very proud of her. She set standards of journalism that were very high. What pleased me is that even though I know she disagreed with me on a number of issues, she was very fair, very frank, and very decent when we discussed them. She went out of her way to make me feel welcomed. Whether you agree or disagree with the Washington Post--I personally believe it is one of the greatest newspapers in America--for her to rise to the pinnacle of her profession in that great newspaper and to make sure that the editorial page and other aspects she worked with in the Washington Post were done with integrity and decency always impressed me. We will miss her. Our love and affection and hearts go out to the family. She deserves the respect of everybody in this body, and, frankly, many, many, more throughout the country.

Mr. HATCH

Mr. HATCH. All right. Let's just proceed.

Mr. HATCH. I think we can do that in a half hour or less; I ask unanimous consent.

Mr. HATCH. We have a unanimous consent to proceed to the debate on these two amendments tonight. As soon as that is completed, I suggest Senator McConnell be able to lay down his amendment, and we debate that tonight and schedule that for a vote tomorrow.

Mr. HATCH. Mr. President, one reason I wanted the Hatch-Craig amendment voted on this evening is because all day long the President has been bad-mouthing the Republicans and the Attorney General has been bad-mouthing the Republicans, and I think taking unfair political advantage because of some of the votes we had yesterday. One of the things they are bad-mouthing the Republicans on is because we have closed that loophole with regard to gun shows. Today, the Hatch-Craig amendment does it. Then we find ourselves unable to vote on it. I am happy we are going to vote in the morning, but I suggest we move on ahead this evening. We have the unanimous consent agreement locked in. I suggest we line up some more votes for tomorrow right after we finish those two votes. If Senator Wellstone has an amendment he would like to bring up tonight, let's do it, and we will see what we can do. We will try to alternate between the two sides. If you are serious about your amendments, let's go at it tonight. We have about 3 hours of debate ahead of us right now. We will go from there. I ask unanimous consent that Senator McConnell be the next one to lay his amendment down, following the debate on these two, and then--could I have the minority leader's attention, and also Senator Leahy? I ask unanimous consent that we go with the McConnell amendment right after we debate the two that we have the unanimous consent agreement on.

Mr. HATCH. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HATCH. Then why don't we do that?

Mr. HATCH. Will the Senator yield? I am prepared to do that. We argued it on our side. What I am suggesting is that your side has had this amendment now for a lot longer than we have had any amendment of yours and some of your amendments were much more extensive than this. I suggest we set aside the Hatch-Craig amendment, move to your amendment at this time, with 30 minutes equally divided, and then agree to a time agreement as soon as we are through with yours. We can stack the votes. That would be fine with me.

Mr. HATCH. You voted aye. We would like to make it mandatory, which we think corrects the problem. I worked hard to get that done and to resolve that because there was such a conflict between both sides.

Mr. HATCH. Yesterday, the Senator voted for the special registrant.

Mr. HATCH. Will the Senator yield on that point? The reason is it was part of an overall package that the Republicans couldn't accept. So we can certainly accommodate.

Mr. HATCH. I am glad to yield to my friend.

Mr. HATCH. If I could respond to the Senator, we have people on our side who are going to move to table this amendment. I would like to avoid that by having a reasonable time for the Senator from New Jersey to argue this amendment. There is nothing complicated about it. We explained it in detail. It is easy to understand. Frankly, there is not one thing in here that is new and that can't be understood readily. I would be happy to sit down with the Senator and go over the detail of this amendment. I think he would be pleased with most all of it. But I would like to avoid a motion to table. I would like the Senator to have time to debate this amendment. But the way things are going, he is going to be cut off on his time. I don't want to have that happen, nor do I want this to evolve into a situation--we have been trying to be cooperative and trying to make this thing work. And it is apparent some people around here are trying to delay it. I am not accusing the distinguished Senator from New Jersey, but I believe we could get this bill finished tonight if we would sit down and get it finished. I don't see any reason we shouldn't. The sooner we get it finished, the sooner the kids in our society are going to understand what the game is and that we are going to stop some of this violent juvenile crime in this country. We are giving the tools to law enforcement to be able to do it. We have $50 million in here for additional juvenile prosecutors, just to name one thing out of that $1.1 billion in this bill. I would like to get a time limit. I am willing to give the Senator all of the time, but let's get a time limit on this and go from here.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I yield for a question only.

Mr. HATCH. We clearly can't pass this bill if we have to have 73 amendments. There is just no way we have time in this legislative session to do it. This bill has virtually everything in it to help us to resolve these problems. We all have pet projects in the amendments that we bring up. It is time to start restraining ourselves and quit delaying this particular bill. I am getting to the point--we are not there yet, but we are getting to the point where I am going to start moving to table every doggone amendment that will come up. I am going to table them right off the bat, because I think we have gone way too far here. If we had a big partisan thing here where your side or our side was being mistreated, that is another matter, but this has been very fairly conducted, and everybody knows it. I think it is time to get serious about solving these juvenile justice problems in our society. This bill has been improved to a large degree. Some of us believe it has been hurt a little bit, but that is the process. Now it is time to sit down and get this done. Look, we have the Hatch-Craig amendment. Admittedly, our side has had more time on that amendment. I would like to get a time agreement. The minority has had that amendment for well over 2\1/2\ hours, maybe 3\1/2\ hours. I can't remember, but it has been a long time. We have had major, major amendments from them. But we have taken one-half hour to get it prepared. It is time to argue it. It is time to get it over with. We are willing to grant most of the time to the distinguished Senator from New Jersey, or others on the minority side. But I would suggest we set a time to vote on this amendment. I would like to get that over with, because I believe this is an amendment that virtually everybody in this body ought to support, because we have made real efforts to try to accommodate people on both sides of the floor. And we have incorporated Democrat ideas in this amendment as well. We have done it to try to bring this matter to an effective and decent conclusion. I know this: The majority leader means it. We are going to be in here all week, and it is just ridiculous to do that, especially when we have come this far and we have had this kind of an open debate. We have debated some of the more controversial and difficult issues, and both sides have been given every chance to speak on it. I suggest we come to a time agreement that gives most of the time to the distinguished Senator from New Jersey and those who are on the minority side who deserve a right to debate this amendment. We are willing to go ahead and do that. I just would like to get a time limit on it and then move on from there, and move to the similar amendment, which we would get a time agreement on.

Mr. HATCH. Mr. President, I want to call to the attention of the Senate that we have possible Democrat amendments of 51 and possible Republican amendments of 22. We have disposed of 12 or 13. Look, this is ridiculous. We have been very fair. Both sides have had an opportunity to present what they wanted to present. We have had some terrible amendments here from one side or the other, and we fought them through and we have done what is right. Let me tell you something. I would like to move through this matter as quickly as we can. I would like to have colleagues on both sides reduce the number of amendments. If you absolutely don't have to have the amendment, let's withdraw it. This is a very, very important bill. We are talking about kids all over this country who are getting away with murder. We are talking about vicious, violent juveniles who are wrecking our country and wrecking our schools and creating gangs and doing things that are really causing this country chaotic conditions. We have a bill here that is bipartisan that really will do something about that. There have been wins on both sides, and I think to the betterment of this bill. I think it is time for us to get down and start working on it and get it done. I can't imagine why anybody in this body wouldn't want to get this bill done, especially with 2 years of work and all kinds of effort and work here on the floor by both sides. I want to compliment my Democratic leader on this bill for the good work he has done on this, and the work we have been able to do together. It is clear we can't pass this bill with 77 amendments.

Mr. HATCH. Let's make that determination then.

Mr. HATCH. I ask for the yeas and nays on both amendments.

Mr. HATCH. Mr. President, have the yeas and nays been ordered?

Mr. HATCH. I ask unanimous consent Ms. Collins be added as cosponsor of the Hatch-Craig-McCain-DeWine-Smith amendment that is pending.

Mr. HATCH. Mr. President, I yield such time as remains to the Senator from Ohio.

Mr. HATCH. Between the two leaders.

Mr. HATCH. I ask unanimous consent that the time between now and 5 o'clock, when the votes start, be divided equally.